[Congressional Record: September 27, 2006 (Senate)]
[Page S10274-S10275]
VOTE EXPLANATION
Mr. McCAIN. Mr. President, due to the passing of a close friend, I
was not present for the vote on amendment No. 5086, offered by Mr.
Levin. With whis statement, I would like to inform the Senate that, had
I been present, I would have voted against this amendment, which sought
to strike the pending legislation on military commissions and insert
the text of the bill reported out of the Armed Services Committee.
Senators Warner, Graham and I wrote and supported the bill that was
reported out of the Senate Armed Services Committee. Over the past 2
weeks, however, we have been involved in negotiations with the White
House and the House of Representatives and reached a compromise.
The compromise legislation, which I support, does not redefine the
Geneva Conventions in any way. It amends the War Crimes Act--which
currently says only that a violation of Common Article 3 is a war
crime--by enumerating nine categories of offenses that constitute
``grave breaches of Common Article 3'' and thus are war crimes,
punishable by imprisonment or death.
The bill authorizes the President to interpret the Geneva
Conventions--a power he has already under the Constitution--as to what
constitute nongrave breaches. These interpretations must be published
in the Federal Register, and they will have same force as other
administrative regulations, and thus may be trumped by law passed by
Congress.
I am pleased with the agreement that we have reached with the
administration and I support this legislation in the form pending on
the floor. For this reason, if I had been present, I would have cast my
vote against amendment No. 5086.
Mr. ROBERTS. Mr. President, I rise today in support of the timely
passage of this legislation. In my view it is essential to the
successful prosecution of our war against the terrorists.
[[Page S10275]]
Ever since the Supreme Court announced its decision in the case of
Hamdan v. Rumsfeld, I have made clear that my three primary goals for
legislation authorizing military tribunals were: (1) Adjudicating the
cases of detained terrorists in proceedings that are consistent with
our values of justice, (2) protecting classified information, and (3)
ensuring that our military and intelligence officers have clear
standards for what is, and is not, permissible during detention and
interrogation operations.
After discussing these issues with National Security Adviser Hadley
and officials at the Department of Justice, I am comfortable in saying
that this legislation accomplishes each of those goals.
First, the legislation authorizes the President to establish military
commissions for the trial of unlawful enemy combatants. Enemy
combatants tried under this legal system will have the benefit of a
comprehensive process that assures them of legal representation, access
to witnesses and evidence, the ability to present a defense, and the
ability to appeal any judgment to the Court of Military Commission
Review, the DC Circuit Court of Appeals, and, ultimately, to the
Supreme Court.
I dare say that some who may be tried by these military commissions
will receive more due process and legal protection than they were ever
willing to grant to others.
Second, while ensuring a full and fair process, the legislation also
recognizes the important role that classified information is likely to
play in these trials. The legislation expressly provides the government
with a privilege to protect classified information. At the same time,
the bill provides a number of ways for the trial court to ensure that
the defendant is sufficiently apprised of the evidence to be used
against him. I think this bill strikes the right balance between
providing a full and fair process, and protecting classified
information.
Third, and most important to me as chairman of the Intelligence
Committee, the bill provides military and intelligence officers
conducting detention and interrogation operations with clear standards.
Why is this so important? Because, there is a consensus in the
intelligence community that terrorist interrogations are the single
best source of actionable intelligence against the plots of a
determined enemy.
Interrogation is a tool used by our brave men and women in the
military and intelligence community to combat a continuing terrorist
threat from those who are bent on attacking and killing Americans.
The majority of useable and actionable intelligence against al-Qaida
comes from terrorist interrogations and debriefings. This tool is vital
to keeping Americans safe--it is irreplaceable and it must be
preserved.
Of particular note is the CIA's detention and interrogation program,
which has been a supremely valuable source of information. This program
has produced intelligence that has helped disrupt terrorist networks
and prevent terrorist attacks. Furthermore, it has been carefully
monitored to ensure that it complies with all our laws.
But, the Supreme Court's decision in Hamdan applied the Geneva
Convention's Common Article 3 to unlawful enemy combatants. This
threatened to shut down the CIA's detention and interrogation
operations.
The standard articulated in Common Article 3 is extremely vague. This
standard leaves military and intelligence officers in the dark as to
what is, and what is not, permitted in detaining and interrogating
unlawful enemy combatants. Moreover, because under current law any
violation of Common Article 3 is a criminal violation, our
interrogators potentially could be subjected to criminal prosecution
for otherwise lawful actions.
Consequently, Congress must act to ensure that our military personnel
and intelligence officers are not forced to operate, or be subjected to
prosecution, under such a vague standard. It is our responsibility to
provide clear guidance to military personnel and intelligence officers
as to what is, and is not, permitted in interrogations. The standard
must be clear enough so that our intelligence officers, who are making
judgment calls in the field, can continue to operate.
The legislation currently before the Senate provides that clarity. It
expressly provides for what acts constitute grave breaches of Common
Article 3 and what acts would be subject to prosecution. It further
allows the President to promulgate regulations for lesser violations of
treaty obligations.
As a result, in passing this legislation, we will give the dedicated
and honorable Americans on the front lines in the war on terror the
clarity they need to fulfill their mission.
To win this war and keep Americans safe, our troops in the field and
our law enforcement personnel here at home need timely and actionable
intelligence. We get that intelligence in many forms such as satellite
imagery, intercepted communications, financial tracking and human
intelligence, including interrogations. In the past months, many of
these intelligence collection tools have been damaged by deliberate
leaks of classified information.
We can ill afford to lose any of these intelligence collection tools
if we are to succeed. I am grateful that this bill will allow our
Nation to continue its highly valuable interrogation programs.
I support the bill, and I urge my colleagues to do the same.
Mr. WARNER. Mr. President, we have had a very good debate. We have
voted on one amendment. We have time remaining on the Specter
amendment. We should be able to conclude that debate in the morning and
proceed, I presume, to a prompt vote on the Specter amendment, and then
proceed with the other two amendments.
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